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People v. Tallwhiteman3/10/2005
2005). The range is broad as to both the information considered relevant and the quality of such information. While a sentence may not be based on materially untrue evidence, a sentencing court may, in evaluating the nature of the offense and the character of the offender, consider conduct for which the offender was never charged, conduct for which charges were filed but later dismissed as part of a plea agreement, or even conduct for which the offender was charged and subsequently acquitted. People v. Newman, 91 P.3d 369, 372 (Colo. 2004).
Here, evidence was presented of defendant's prior conduct. At the sentencing hearing, the alleged victim of the assault described her assailant and identified defendant as her assailant. Notwithstanding defendant's denial in his allocution, there is no evidence in the record suggesting that the testimony presented by the prosecution was materially untrue. Thus, we conclude the trial court did not err in considering this testimony in sentencing. See People v. Newman, supra; People v. Vensor, supra.
Defendant's reliance on People v. Janke, 720 P.2d 613 (Colo. App. 1986), is misplaced. In Janke, unlike here, the sentencing court surmised, without any supporting evidence, that the defendant had raped other victims.
The judgment and sentence are vacated as to the convictions for first degree assault-extreme indifference and reckless endangerment. In all other respects, the judgment and sentence are affirmed.
JUDGE MARQUEZ and JUDGE CARPARELLI concur.
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